(Application no. 6859/02)
24 January 2008
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Nagovitsyn v. Russia,
The European Court of Human Rights (First Section), sitting as a Chamber composed of:
Loukis Loucaides, President,
Sverre Erik Jebens, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 3 January 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Proceedings concerning the preferential loan
B. Proceedings concerning the housing in Moscow
C. Proceedings concerning the housing in Kirov
“[the applicant] should be provided with housing either [on the basis of] a social tenancy or ...by way of transfer [of housing] into his ownership.”
That judgment was not appealed against and became final.
“I declare that I accept, in execution of the judgment of 28 November 2001..., ... the three-room flat situated at 9/1, Stroiteley Avenue, ... measuring 40.28 square metres.
Taking into account the decision of the Leninskiy District Court of 12 November 2002, the flat should either be transferred into my ownership or the social tenancy agreement should stipulate that ... 'the owner shall transfer the flat into the ownership of the tenant at his first request.'
Otherwise I shall not consider that the judgment of the court is executed.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Entitlement of the Chernobyl victims to housing
B. Social tenancy
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
He also referred to Article 1 of Protocol No. 1 to the Convention, which reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The first judgment
40. By judgment of 19 November 1997, the District Court acknowledged that the applicant had the right to a preferential loan under the Chernobyl Law (see paragraph 9 above). The Court observes, however, that the judgment did not confer any new entitlement on him since his eligibility for a preferential loan had never been disputed and since no domestic authority had contested the actual existence of the right established in the Chernobyl Law. Accordingly, the Court considers that the judgment at issue was essentially of a declaratory nature and did not concern any “dispute” over a civil right. Nor did the judgment determine the scope or manner of exercise of the applicant's right to a loan because he had not raised these issues in the proceedings. In these circumstances, the Court is unable to conclude that Article 6 § 1 of the Convention applied to the proceedings which ended with the judgment of 19 November 1997 or to the ensuing enforcement stage which is regarded as an integral part of the “trial” for the purposes of Article 6 (see Kanayev v. Russia, no. 43726/02, § 19, 27 July 2006, with further references).
2. The second judgment
1. Conflict with the budget law; shortage of housing
50. The Court reiterates that it is not open to a State authority to cite lack of funds or other resources, such as housing, as an excuse for not honouring a judgment debt (see Malinovskiy, cited above, § 35, and Plotnikovy v. Russia, no. 43883/02, § 23, 24 February 2005). Admittedly, a delay in the execution of a judgment may be justified in particular circumstances, but the delay may not be such as to impair the essence of the right protected under Article 6 § 1. The applicant should not be prevented from benefiting from the success of litigation on the ground of alleged financial difficulties experienced by the State (see Burdov, cited above, § 35). Therefore, this argument should be dismissed.
2. Abrogation of non-monetary social benefits
3. The applicant acted mala fide; the courts took wrong decisions
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 4 TO THE CONVENTION
“1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. ...”
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,100 (two thousand one hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into Russian roubles at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 24 January 2008, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Loukis Loucaides